Bill C-346

1st Session, 39th Parliament,

55 Elizabeth II, 2006

house of commons of canada

BILL C-346

An Act to amend the State Immunity Act and the Criminal Code (terrorist activity)

WHEREAS United Nations Security Council Resolution 1373 (2001) reaffirms that acts of international terrorism constitute a threat to international peace and security and the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts;

WHEREAS Canada ratified the 1999 International Convention for the Suppression of the Financing of Terrorism (the “Convention”) on February 15, 2002;

WHEREAS article 18 of the Convention states that parties to the Convention must take all practicable measures to prohibit in their territories illegal activities of persons and organizations that knowingly encourage, instigate, organize or engage in the commission of offences set forth in the Convention;

WHEREAS article 2 of the Convention requires Canada as a signatory to take the necessary measures against any person that by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out offences under the Convention;

WHEREAS article 5 of the Convention states that liability under the Convention may be criminal, civil or administrative;

WHEREAS article 5 of the Convention states that each State Party shall ensure that legal entities liable in accordance with provisions of the Convention are subject to effective, proportionate and dissuasive criminal, civil or administrative sanctions that may include monetary sanctions;

WHEREAS, on February 12, 2004, the Government of Canada stated in its report to the Counter-Terrorism Committee of the United Nations Security Council (“the Security Council”) that to date Canada has not taken any specific judicial action against a non-profit organization based on alleged or suspected involvement in the financing of terrorism;

WHEREAS the Government of Canada reported to the Security Council that the Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”) received a total of 17,197 Suspicious Transaction Reports between 2001 and 2003;

WHEREAS the Government of Canada reported to the Security Council that Canadian financial institutions had frozen $360,000 of suspected terrorist assets in 20 accounts as of April 17, 2002;

WHEREAS the 2003-2004 Annual Report of FINTRAC reported $70 million in financial transactions suspected of being linked to terrorist activity financing and threats to the security of Canada;

WHEREAS FINTRAC reported it has tracked down up to $140 million in funds linked to terrorism in 2004-2005;

WHEREAS article 8 of the Convention states that each State Party shall consider establishing mechanisms whereby the funds from forfeitures referred to in article 8 of the Convention are utilized to compensate the victims of offences referred to in article 2 of the Convention;

WHEREAS subsection 83.14(5.1) of the Criminal Code provides that any proceeds that arise from the disposal of property related to terrorist groups or activities may be used to compensate victims of terrorist activities;

WHEREAS the intended victims of terrorist acts include the individuals who were physically, emotionally or psychologically injured by the terrorist acts and their family members;

WHEREAS the Government of Canada has recognized that the unique nature of the terrorist threat has mandated the need for further legislation, and has reported to the Counter-Terrorism Committee of the Security Council that Canada’s Anti-Terrorism Act of 2001 was enacted in recognition that further legislation was needed to reinforce the safety and security of Canadians;

WHEREAS the Government of Canada acknowledged in its report to the Security Council that there is no civil liability in tort for criminal offences relating specifically to terrorism;

WHEREAS the prohibition against terrorism is a peremptory norm of international law (jus cogens) accepted and recognized by the international community of States as a whole as a norm from which no derogation is possible;

WHEREAS the support and financing of terrorism is a crime under international law;

WHEREAS state immunity is generally accepted as being restrictive or relative, applying only to sovereign acts of state (acta jure imperii);

WHEREAS terrorism is a threat to democracy, and the support and financing of terrorism, which is a crime under international law, are not entitled to immunity when claimed to be sovereign acts of state;

WHEREAS the 1999 International Convention for the Suppression of the Financing of Terrorism and the United Nations Declaration on Measures to Eliminate International Terrorism encourage states to review urgently the scope of existing international legal provisions on the prevention, repression and elimination of terrorism with the aim of ensuring that there is a comprehensive legal framework covering all aspects of the matter;

WHEREAS 154 Canadians were murdered on June 23, 1985 in the largest terrorist attack in North America prior to September 11, 2001;

WHEREAS numerous other Canadians have been murdered or injured in other terrorist attacks;

WHEREAS the Government of Canada reported to the Security Council that fighting terrorism is of the highest priority for the Government of Canada;

WHEREAS it is the policy of the Government of Canada that judicial awards against persons who engage in terrorist activities must be sufficiently large to deter future such conduct;

AND WHEREAS this Act incorporates into and confirms as Canadian law the existing peremptory norms and provisions of international law for the prevention, repression and elimination of terrorism;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

STATE IMMUNITY ACT

1. The State Immunity Act is amended by adding the following after section 6:

2. Subsection 11(3) of the Act is replaced by the following:

(3) This section does not apply to an agency of a foreign state or to a foreign state that engages in terrorist activity.

3. (1) Paragraph 12(1)(b) of the Act is replaced by the following:

(b) the property is used or is intended for a commercial activity or a terrorist activity;

(2) Subsection 12(1) of the Act is amended by striking out the word “or” at the end of paragraph (b), by adding the word “or” at the end of paragraph (c) and by adding the following after paragraph (c):

4. Subsection 13(2) of the Act is replaced by the following:

(2) Subsection (1) does not apply to an agency of a foreign state or to a foreign state that engages in terrorist activity.

CRIMINAL CODE

5. The Criminal Code is amended by adding the following after section 83.33: